An alert reader who is a representative of the class that’s suing the DNC Services Corporation for fraud in the 2016 Democratic primary — WILDING et al. v. DNC SERVICES CORPORATION et al., a.k.a. the “DNC lawsuit” — threw some interesting mail over the transom; it’s from Elizabeth Beck of Beck & Lee, the firm that brought the case on behalf of the (putatively) defrauded class (and hence their lawyer). Beck’s letter reads in relevant part:

[Y]ou may have heard on some early independent news reports (the earliest reports were via tweets from the attorneys on the case), the appellate court [the 11th Circuit Court of Appeals] has issued a preliminary order in our favor dispensing with one jurisdictional issue that the lower court had raised….

In dispensing with this issue, the Court is allowing the appeal to continue to proceed. The appellate court could have thrown out the appeal, but chose to allow Plaintiffs to amend the Complaint, and agreed with us that with the changes, the jurisdictional issue raised by the lower court is resolved.

I would like to take this opportunity to caution against any premature exultation, as the ultimate odds are not in our favor (only about 5% or so of civil appeals are overturned, on average).

All this is context for a lawsuit against the Democratic National Committee that has been slowly wending its way through a federal district court in Florida. The suit contends that the DNC engaged in fraud by reneging on a key commitment in its charter.

The DNC charter is fairly explicit. Article V, Section 4 says: “In the conduct and management of the affairs and procedures of the Democratic National Committee, particularly as they apply to the preparation and conduct of the Presidential nomination process, the Chairperson shall exercise impartiality and evenhandedness as between the Presidential candidates and campaigns.”

The charter goes on to state: “The Chairperson shall be responsible for ensuring that the national officers and staff of the Democratic National Committee maintain impartiality and evenhandedness during the Democratic Party Presidential nominating process.”

DNC emails that reached the public a year ago show direct and purposeful violations of those DNC rules. As The New York Times reported with understatement days before the national convention, “The emails appear to bolster Mr. Sanders’s claims that the committee, and in particular [DNC Chair Debbie] Wasserman Schultz, did not treat him fairly.”

The theory of the case is, in other words, consumer fraud (!); small DNC donors were sold a bill of goods. From my own summary:

One prong of the plaintiff’s case is based on consumer fraud law: The DNC represented itself as being neutral and people donated money to it on that basis, when in fact (as shown by the Gufficer 2.0 documents) the DNC had its thumb on the scale for Clinton the whole time. I’m not sure I’m comfortable thinking of citizens as consumers.

That said, the revivification of the DNC lawsuit serves as a story hook for me to try to advance the story on the nature of political parties as such, the Democratic Party as an institution, and the function that the Democratic Party serves. I will meander through those three topics, then, and conclude.

What Sort of Legal Entity is a Political Party?

I present the following exchange between myself and a subject matter expert. I asked:

What sort of legal entity is the Democratic Party, anyhow? It’s not a profit-making corporation. It’s not a 501(c)(3) or whatever. It’s not a membership organization like the DSA or British Labour. But if you believe the DNC’s lawyer in the Beck case, the party can choose whatever candidates it wants in a smoke-filled room. So apparently it’s not an association of voters. They also get (yes?) public money for running elections.

And the expert concluded:

This question is fantastically complicated.

So yet again, I didn’t find the bird![1] However, the expert did recommend that I read this article: Benjamin D. Black, “Developments in the State Regulation of Major and Minor Political Parties,” Cornell Law Review, Volume 82, Issue 1, November 1996 (PDF). There, I found the following passage:

Political parties were purely private organizations from the 1790s until the Civil War. Thus, “it was no more illegal to commit fraud in the party caucus or primary than it would be to do so in the election of officers of a drinking club.” However, due to the efforts of Robert La Follette and the Progressives, states began to treat political parties as “public agencies” during the early 1890s and 1900s; by the 1920s “most states had adopted a succession of mandatory statutes regulating every major aspect of the parties’ structures and operations.” Because the parties were “public” under conventional constitutional doctrine, the courts “deprive[d] the parties of the protections of the Bill of Rights.” By the 1970s, federal courts considered “virtually every aspect of the party’s presidential nomination process .. .state action,” and thus, subject to state regulation. At the same time, however, the Court issued a number of decisions that treated political parties as private organizations that held First Amendment rights. By recognizing that political parties are holders of First Amendment rights in some circumstances, the Court created a dilemma—parties could be both public and private entities depending on the particular activity in question.

While 1787 delegates disagreed on when corruption might occur, they brought a general shared understanding of what political corruption meant. To the delegates, political corruption referred to self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy. Two features of the definitional framework of corruption at the time deserve special attention, because they are not frequently articulated by all modern academics or judges. The first feature is that corruption was defined in terms of an attitude toward public service, not in relation to a set of criminal laws. The second feature is that citizenship was understood to be a public office. The delegates believed that non-elected citizens wielding or attempting to influence public power can be corrupt and that elite corruption is a serious threat to a polity.

You can see how a political party — a strange, amphibious creature, public one moment, private the next — is virtually optimized to create a phishing equilibrium for corruption. However, I didn’t really answer my question, did I? I still don’t know what sort of legal entity the Democratic Party is. However, I can say what the Democratic Party is not.

Institutionally, the Democratic Party Is Not Democratic

Here I want to consolidate some earlier NC material. First, on why superdelegates have a voice in choosing candidates, this video from a Democratic superdelegate. From October 25, 2017:

So the purpose of superdelegates is to veto a popular choice, if they decide the popular choice “can’t govern.” But this is circular. Do you think for a moment that the Clintonites would have tried to make sure President Sanders couldn’t have governed? You bet they would have, and from Day One.

And since when do Democrats want to govern, anyhow? Obama had the chance to be a second FDR, and under the most charitable interpretation possible, he went into the Rube Goldberg Device-building racket (“… (M), allowing donations to a Presidential Library, thereby cashing in [ka-ching].” And no, I don’t care that the DNC Unity Commission has recommended reducing the number of superdelegates. First, the Rules and Bylaws Committee, having been purged of Sanders supporters[3], has yet to vote on the recomendation. More importantly, you can bet that the number of superdelegates retained is enough for the superdelegates, as a class, to maintain their death grip on the party.)

MR. SPIVA: [W}here you have a party that’s saying, We’re gonna, you know, choose our standard bearer, and we’re gonna follow these general rules of the road, which we are voluntarily deciding, we could have — and we could have voluntarily decided that, Look, we’re gonna go into back rooms like they used to and smoke cigars and pick the candidate that way. That’s not the way it was done. But they could have. And that would have also been their right, and it would drag the Court well into party politics, internal party politics to answer those questions.

That’s exactly “the way it was done”, as the Podesta mails and the Guccifer 2.0 documents show.

Of course, if indeed the Democratic party is an amphibian, both public and private, there may very well be public questions that go beyond private “internal party politics” (though I’m not sure Beck’s consumer law-oriented theory of the case can take that line). And from the conflation of public and private we turn to corruption.

Functionally, the Democratic Party Is a Money Trough for Self-Dealing Consultants

Here once again is Nomiki Konst’s amazing video, before the DNC:

Those millions! That’s real money! In an earlier article in Medium, Konst wrote:

Today, it is openly acknowledged by many members that the DNC and the Clinton campaign were running an operation together. In fact, it doesn’t take much research beyond FEC filings to see that six of the top major consulting firms had simultaneous contracts with the DNC and HRC — collectively earning over $335 million since 2015 [this figure balloons in Konst’s video because she got a look at the actual budget]. (This does not include SuperPACs.)

One firm, GMMB earned $236.3 million from HFA and $5.3 from the DNC in 2016. Joel Benenson, a pollster and strategist who frequents cable news, collected $4.1m from HFA while simultaneously earning $3.3 million from the DNC. Perkins Coie law firm collected $3.8 million from the DNC, $481,979 from the Convention fund and $1.8 million from HFA in 2016.

It gets worse. Not only do the DNC’s favored consultants pick sides in the primaries, they serve on the DNC boards so they can give themselves donor money. Andrew Dobbs, an activist and organizer from Austin, TX writes:

Primary among these structural choices is the fact that the DNC—the party’s governing body—actually allows political consultants to be elected as members and then even allows those members to be vendors to the party and to campaigns they are supporting.

And:

This self-dealing means that the interests of the consultant class will always have a privileged place in campaign decision-making.

As we saw in 2016, where the DNC consultants picked sides (and if that’s not “rigging” the primaries, tell me what is). Having self-dealt themselves contracts, the consultants[4] then maximize their fees:

These campaign consultants make a lot more money off of TV and mail than they do off of field efforts. Field efforts are long-term, labor-intensive, high overhead expenditures that do not have big margins from which the consultants can draw their payouts. They also don’t allow the consultants to make money off of multiple campaigns all in the same cycle, while media and mail campaigns can be done from their DC office for dozens of clients all at the same time. They get paid whether campaigns win or lose, so effectiveness is irrelevant to them.

Now, I think it would be a little strong to say that the Democratic Party is nothing more than a layer of indirection between the donor class and the Democratic consultants and the campaigns they run; after all, the Democratic Party — in its current incarnation — has important roles to play in not expanding its “own” electorate through voter registration, in the care and feeding of the intelligence community, in warmongering, in the continual buffing and polishing of neoliberal ideology, and in general keeping the Overton Window firmly nailed in place against policies that would convey universal concrete material benefits, especially to the working class. Those are all very important!

Conclusion

Seth Ackerman gives this definition of an “inside/outside” strategy; the bottom line is that if Democratic Party controls ballot access for the forseeable future, they have to be gone through as well as around. But if the nature of the Democratic Party as an institution and/or legal entity cannot be specified — and I’m not sure that either Ackermann in 2017 or Black in 1996 do this — it’s like going to war without knowing the enemy’s order of battle. Not a recipe for victory. More work needed. And it’s “fantastically complicated.” So, again, I haven’t found the bird!

* * *

Readers will note that in the headline I wrote “Democratic Party” out of deference to those who recall the Republicans of forty years ago deploying “Democrat Party” as a smear. However, I’ve come to prefer “Democrat Party” regardless of past party wars, on the grounds that Democrats have to earn to moniker “Democratic,” and not merely claim it.

NOTES

[1] “Every so often, I feel that I have cause to recall the famous New Yorker story about the writer who heard about a bird in the woods, said to be extinct. So he went to report on the story, found the local who thought they’d heard the bird’s song, bought some yellow waders, hired guides and a boat, and set out through the swamps and the Spanish moss and the dripping and the stinging insects in search of the bird. Long-form story short, they never found the bird. So what’s the point of a story where you don’t find the bird?”

[2] Black also writes:

Any interpretation of the Elections Clause should also recognize a simple historical fact: when this provision was drafted, political parties were generally unknown and positively feared. To the Founders, the entire structure of our government-the separation of powers-was predicated on a fear that factions, operating through parties, would impose their will on the country. John Taylor, a Founding Father and libertarian from Virginia, lamented: “The situation of the public good, in the hands of the two parties nearly poised as to numbers, must be extremely perilous. ‘ John Adams feared the specter of the “division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to one another.” Regardless of whether the Founders’ fears were politically naive, unreasonable, or unfounded, it is fair to conclude that the Founders evinced no particular theory of party politics, let alone one desiring continuous two-party domination of American politics.

(I’d speculate that the two parties feared by Taylor and Adams would be pro- and anti-slavery; whenever you see the word “property” in the Federalist Paper, remember that slaves were property.) Surely, then, a strict constructionist would conclude that there’s no Constitutional justification for parties. Parties don’t seem to be working very well. Perhaps, rather than tinkering round the edges with consumer law, a suit should be brought to abolish political parties altogether? (The DSA, a membership organization with no ballot line, would in my view not be a party in the same way that the Democrats and Republicans are.)

[3] In retrospect, despite Sanders evident appeal and the power of his list, I think it would have been best if their faction’s pushback had been much stronger; expressions of outrage were insufficient. Physical occupation of DNC premises would have been fully warranted.

[4] Oddy, or not, these consultants go unmentioned in the press, at least collectively. Individually, they’re all over the airwaves like cheap suits. Here’s a list:

About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered.
To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

“What Sort of Legal Entity is a Political Party?”
While this is not directly relevant to federal law, the answer in Oregon (for one example) is “a non-profit corporation.” IOW, it’s actually a charity of sorts, but not 501c3 – not deductible. As a POLITICAL charity, it’s subject to some special rules, for instance, and especially, how we nominate candidates – and those rules are different for “minor” vs. “major” parties. Incidentally, there are THREE major parties in Oregon; the Independent Party met the registration threshold. The SOS office seems to care about those nomination rules – the Pacific Green Party has been dinged once or twice for getting it wrong; but not so much about our internal rules, although those are on record with the state, as are our officers, etc. (thanks to the convention last weekend, I’m now an officer again – reluctantly). There may be differences around what is the governing body; we treat the state convention as such, the Democrats seem not to – that is, they ignore its decisions. I’ve never heard of a lawsuit resulting.

I assume federal law is similar. In particular, that the parties are essentially charities – they take donations, after all. I think charities are subject to the same fraud laws as businesses; so “consumer” wouldn’t be the right word for donors, if you’re worried about that, but it isn’t allowed to misrepresent itself – that would be fraud. Fraudulent charities are fairly common.

The issue at hand seems to be whether the organization’s own rules are actually binding on it, subject to at least civil enforcement. Ironic, isn’t it, that a party called “Democratic” would be pointedly UN-democratic. But that’s what propaganda is for.

And a further point: states have cabinet-level officers in charge of managing elections. The federal government evidently doesn’t. Instead, it’s the recently-set-up FEC, which does have enforcement power but little power within the administration. One reason for that is that states are Constitutionally responsible for running elections.

On the other hand, the Libertarian Party of the United States is a Membership Organization. On the other hand, its national committee is elected at its national convention, by the delegates, every two years.

Jesus freaking family blog Lambert. Hope those yellow waders are hip high.
As someone who has been filing forms with a very limited number of govt entities for 30+ years, this is some surreal stuff.
Rampant speculation: maybe they are a default entity that no one talks about: An Unincorporated Association. They’d only be required to file as if they were a C-Corporation. And pay tax on whatever profit.
But it all gets down to accountability. Not only does the DNC demonstrably feel that they have no obligation to render an accounting—worse: it seems there may be no way to force them to do so! [Insert joke here about too many lawyers on both sides of the equation]
Regardless, this whole thing needs to be sent to the nearest sewage treatment plant asap. Anyone who thinks there is something here worth *saving* ore re-forming is out of their cotton-pickin’ mind, with all due respect, of course.

I didn’t have time to make a transcript of the Konst video but IIRC the five (5) consultants took home $700 million dollars for the 2016 election. That’s a lot of money to stuff down the toilet; must have taken quite a plunger.

One thing is for sure: this is not the same party I worked for in the late ’70s/early ’80s.

Each time I reached out to the Democrat party in this century, they hung up on me (often in person). No matter how directly my knowledge or skills spoke to their campaign needs. Not talking trying to get hired here, I’m talking simply being allowed to volunteer on a part-time basis in a meaningful capacity. Free skilled labor. Not interested.

There is no party, just consultants running campaigns who cash your check and ignore your letters/emails/shouted questions. I am still shocked that despite three efforts I could not get anyone at Randy Bryce’s campaign to talk to me even though I’d worked that district against Ryan in 2016. In my day back in Iowa we’d talk to a homeless person off the street if they had something to say (and it was my job to get them out of the office if they tried to make it a daily coffee stop but the point is we’d listen to them at least once).

Consultants refuse to listen to anyone. They know what they’re doing, especially when they don’t.

Thanks for this. For a country that suffers from way too much political horse race reporting, there’s a real shortage of stories like this one that pull back the curtain on the sh*tshow that is the Democrat party (and it still hurts to type Democrat but Lambert’s right, they’re not at all Democratic).

Oh,oh,oh (hand in air) – I have the answer! It’s a wealth pump, sir. It’s used to transfer the majority of donations from the party to a small select group of consultants so that they can get even richer.
Those mansions in Washington DC aren’t going to pay for themselves nor pay for those lavish lifestyles, you know. And somebody has to make their money off the Democrats. Win, lose or draw – they still have to be paid.

Reminds me of the dual nature of the “Creature from Jekyll Island”, the Federal Reserve. If they are public, and not a private banking cartel, why can’t we audit them thoroughly?
Which then reminds me that most public/private endeavors end poorly for the public.
If a suit questioning the constitutionality of political parties is brought (crowdfunded?), I hope we also bring one questioning the authority of the Supreme Court clerk, Davis, who singlehandedly turned corporations into persons in a headnote;

The most apparent is establishing detrimental reliance. Detrimental reliance is an essential part of the majority of the claims filed, including fraud, negligent misrepresentation, the violation of § 28-3904 of the D.C Code, and unjust enrichment.

The Becks will have to demonstrate to the satisfaction of the court, that each individual in the three classes represented in the suit—Bernie Sanders donors, DNC donors, and Democratic Party members more generally—made their fruitless contributions based on assurances by the DNC that it was a neutral party during the primary. This will be difficult.

The issue is not whether the Becks can prove the Democratic Party leadership acted in a way that favored Hillary Clinton despite its charter-mandated neutrality and claims to the contrary by its representatives. The evidence submitted to the court should be satisfactory to that end. For instance, the Becks submitted a strategy memo from a month after Sanders entered the race showing that protecting the former Secretary of State was the DNC’s top priority—even if that meant muddying the issues Sanders himself was running on.

No, the problem is that an ideal plaintiff here is someone who had never donated to a campaign in their lifetime or who had only donated to the GOP until Bernie Sanders announced his candidacy. This individual would’ve then donated to both Bernie’s campaign and perhaps the party generally, ceasing after news broke of the damning DNC leaks or when Clinton became the party’s nominee.

With these unicorns, detrimental reliance could possibly be demonstrated because the circumstances suggest it was belief that Sanders could win which motivated their donations. However, even then there is no guarantee a court would rule in their favor, barring outside evidence like postings on social media.

That said, Mark Carmanica of the law firm Thomas and LoCicero, one of the attorneys for the DNC, did acknowledge to Paste that such plaintiffs could possibly prevail.

“I suppose theoretically, if you had that factually ideal plaintiff, you could have a case,” he speculated, dismissing the Becks’ class action claims. “Even if they did exist, there probably aren’t enough of them to rise to class action status.”

This journalist is inclined to disagree, given that in a matter of minutes on Twitter, Paste was able to come by several individuals who claimed to fall into this category.

And here is a priceless video where Bragman tries to interview the Becks. Mrs. Beck, who is literally wearing a tinfoil hat the whole time, is completely unhinged and curses and swears at Bragman rather than answer a question.

I’m trying the remember if the Democratic Party was a national machine, instead of a national party, before the Clintons. I know there were often state & large city political machines in the past. Were those machinations lifted to the national level? Wasn’t the DNC formed to combat the state political machines of the Koch Brothers? I’m just asking because I hope we’re not trying to reinvent the wheel.
Since another commentator mentioned Randy Bryce, I am enjoying following Randy, Mark Pocan, and John Nichols on Twitter as they play tag team in Wisconsin during the lead up to 2018. Thom Hartmann is now doing Mid-day with Mark instead of Brunch with Bernie. Of note is an article about younger people running for office in Wisconsin. ” As a 38-year-old, I know firsthand how student debt imperils the economic security of my generational peers. As a mother of young children, I believe every single worker deserves paid family leave — and safe, affordable childcare.”http://host.madison.com/ct/opinion/column/john_nichols/democrats-should-take–something-candidates-like-kelda-roys-and/article_3d5e7e50-6843-5ab2-869c-0c56f6616deb.html

“…the bottom line is that if Democratic Party controls ballot access for the forseeable future they have to be gone through as well as around.”

But is there any strategic thinking on “going around.” Way back in the early 1990s Robert Putnam argued that “…our political parties once intimately coupled to the capillaries of community life have become evanescent confections of pollsters and media consultants and independent political entrepreneurs.”

Have we too easily accepted a conception of democracy that is simply a residue of campaign strategy? Are they even worth going through?

Great analysis, Lambert.
Any thoughts re: US Code 527 as per IowanX above? There are lots of public reporting requirements–does this tend to make it “public” in the sense of this discussion? Section B of code 527 was a bewildering mishmash of multiple negatives.

To add to this discussion, consider the interview series with Jan R. Weinberg on “The Audacity Files” series on YouTube “CrowdSourceTheTruth”.

Its importance lies in the personal expertise of Weinberg and his diligence in providing Bernie Sanders and his top campaign staff on multiple occasions, in good time, with documentary evidence that the primary was rigged. This info was provided–and receipt verified–on multiple occasions, at multiple points during the primary campaign. Sanders and staff never responded to address the issues raised. The inescapable conclusion so far seems to be that Sanders knew the primary was rigged and was participating in full knowledge that it was never going to be a real contest and he’d support HRC regardless.

Episode 3 is here. There are 3 so far; comments below each have links to source documents. My internet is not cooperating enough to quickly find the link for Episode 1.